The People v. Arthur Joseph Gomez

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Glenn

April 26, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,v.ARTHUR JOSEPH GOMEZ, DEFENDANT AND APPELLANT.

Super. Ct. No. 09NCR07504

The opinion of the court was delivered by: Hull , J.

P. v. Gomes CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

On December 11, 2009, defendant Arthur Joseph Gomez was charged by information with first degree robbery in concert (Pen. Code, §§ 211/213, subd. (a)(1)(A); all further statutory references are to the Penal Code). The information also alleged that defendant had suffered three prior felony convictions (§ 667.5, subd. (b)).

On February 23, 2010, after trial, a jury convicted defendant of robbery in concert.

On March 26, 2010, at sentencing, the trial court found that defendant had admitted the three prior prison terms alleged in the information. Defendant and his trial counsel did not contest this finding.

The trial court sentenced defendant to a total state prison term of nine years, consisting of six years (the midterm) on the robbery offense and three years consecutive for the three prior prison terms. The court awarded defendant 189 days of presentence custody credits (164 actual days and 25 days of conduct credit). The court also imposed various fines and fees.

The evidence at trial showed that in the early morning of June 9, 2009, defendant and three accomplices entered the apartment of Ramon C. and robbed him of money and other items.

The reporter's transcript filed on appeal did not contain defendant's admission of his prior felony convictions. Appellate counsel pointed out this omission to trial counsel, who requested a hearing to obtain a settled statement as to the admissions. (Cal. Rules of Court, rule 8.137.) Trial counsel and the prosecutor stipulated at the hearing that on February 22, 2009, the first day of jury trial, defendant admitted the priors before the taking of evidence began.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief contending: (1) The trial court committed prejudicial error by allowing trial counsel to stipulate to defendant's admission of the priors in defendant's absence; (2) defendant never admitted the priors or "signed any waiver"; (3) defendant was denied his constitutional right to trial by the jury on the priors; and (4) the record does not show that defendant waived his right to jury trial on the priors (cf. Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122). Defendant has shown no error.

In the absence of a contemporaneous transcript of defendant's admission of the priors, the settled statement obtained by defendant's trial counsel is "a fair substitute for a complete transcript," and "the record before us [, including the settled statement,] is adequate to afford defendant effective appellate review." (People v. Scott (1972) 23 Cal.App.3d 80, 86.) Defendant cites no authority holding that trial counsel needed defendant's authorization to enter into the stipulation recorded in the settled statement, and we know of no such authority.

In light of the settled statement, as well as defendant's failure to object at sentencing when the trial court found that defendant had admitted the priors, we conclude that his admission of the priors is proved. This conclusion moots his remaining contentions.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

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